New York State Court of Claims

New York State Court of Claims

SLOANE v. THE STATE OF NEW YORK, #2002-013-514, Claim No. 96257


Claim based on allegations of improper design of a highway exit onto an adjacent service road is dismissed. Claimant failed to prove either that the design was developed without adequate study, that it was defective, or that any aspect of the road's design was a proximate cause of the accident.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On June 21, 1995 at approximate 2:55 p.m., Claimant Peter Sloane was injured while riding a motorcycle. He was traveling along Sunrise Highway on his usual route from work to home when his motorcycle collided with a sedan near Exit 52, Waverley Avenue, in Patchogue, New York. This decision relates only to the issue of liability.

Claimant has no independent recollection of the accident. He was only able to recall leaving work on the day in question and, later, lying on his back in the roadway at the accident scene.[1] He testified that he normally exited the highway at Exit 52 when he returned home from his job at the Suffolk County Department of Public Works. He also testified that he was an experienced motorcycle operator.

The officer who first arrived at the scene, Suffolk County Police Officer James Lennon, testified that he saw Claimant's motorcycle lying atop a red sedan in the parking area of Jim's Smoke Shop, adjacent to the service road. In filling out the accident report, he designated Claimant as the operator of vehicle number 1, which, according to his normal practice, is the number assigned to the party that he considers the "victim" in an accident. The other vehicle involved in the collision was a 1968 Lincoln automobile operated by Melissa Scheid, and it appeared to Officer Lennon that it was this vehicle that caused the accident. Claimant, who was wearing a motorcycle helmet, was lying on the pavement and was semi-conscious.

According to Officer Lennon, the service road on which the accident occurred was a two-lane roadway with a third shoulder/breakdown lane on the right. It could be accessed by way of an exit ramp[2] from the main eastbound portion of Sunrise Highway. The service road is a straight road, marked by entrances off it to the right, to adjacent shops and business. The exit ramp is also two lanes, with the right merging into the left-hand service road lane and the left lane continuing on for a distance and then becoming the entrance ramp for traffic going from the service road onto the main highway. The accident site was in the right-hand lane of the service road near the entrance to a theater, but Officer Lennon concluded that the actual point of impact had been to the west of that location.

In preparing for the trial, Officer Lennon measured the distance from the end of the exit ramp (in this case from the end of a raised concrete area separating the exit ramp from the service road)[3] to the theater marquee sign, located a short distance before the driveway type entrance to the theater. The distance between these two points was 322 feet. Officer Lennon also testified that the posted speed on Sunrise Highway was 55 miles per hour, while the posted speed on the service road was 35 miles per hour. It was acknowledged, however, that frequently vehicles on both roads exceeded these limits. When asked about the way in which the accident occurred, Officer Lennon stated that in his opinion the automobile was in the process of changing lanes -- from the left lane of the service road -- but was not yet turning into the theater entrance when it collided with the motorcycle. He based this conclusion, in part, on what he was told by the driver of the automobile.

The deposition of the driver of the other vehicle, Melissa Scheid (Exhibit 72) was introduced into evidence. At the time of the accident, she was 17 years old and had had her driver's license for only three and one-half months. A friend, Billy Rutkoske, was riding in the passenger seat and assisted her with directions and changing lanes. They were headed to the movie theater immediately next to the service road and, because she had been to this location in the past as a passenger, she knew that as soon as she left the exit ramp, she would have to move quickly from the left lane of the service road into the right lane to reach the entrance to the theater in time to turn in there.

As she drove to the end of the exit ramp, Scheid looked to the right to see if any traffic was coming from that direction, observed that the traffic was "medium to heavy," and then entered the left lane of the service road. She could not recall whether she brought her vehicle to a complete stop before entering the service road. Once there, she quickly attempted to get into the right lane, looking both ahead and to her right repeatedly. She stated that she did not specifically recall ever looking into her rearview mirror, but at another point she made reference to looking into the side mirror. Continuing to use her turn signal, she gradually eased her vehicle over into the right lane. She was not certain whether it had traveled all the way into that lane when the accident occurred but, when pressed to answer, stated that in her mind she believed the car was all the way into the right-hand lane. Scheid stated that she never saw Claimant or his motorcycle until the moment immediately before the impact. The impact involved the right corner and front side of her car.[4] From her perception, the impact was light and her car continued to move, but she saw the motorcycle go into the air. She described the location of the accident as approximately five to ten feet before the entrance to the movie theater. After the collision, her car continued to move forward and she turned it into the theater entrance, where she parked and both she and her friend got out of the vehicle. She stayed beside the car, while Billy walked across the entrance road in order to be closer to the place where Claimant and his motorcycle had come to rest.


Nicholas Bellizzi, a licensed professional engineer, testified for Claimant. He stated that he had reviewed a number of plans for the construction of this portion of the highway, made two field visits to the site, and considered three sets of standards applicable to such design: the New York State Highway Design Manual (Design Manual), the American Association of State Highway and Transportation Officials (AASHTO) design books, and the Highway Capacity Manual (Capacity Manual), with particular attention to the section relating to weaving areas.

He determined that the design of the exit ramp itself was appropriate, providing at least 300 feet of no access as required by the Design Manual, Figure 6-V (Exhibit J). In his opinion, however, the placement of the ramp was wrong because the relative locations of the exit ramp, the service road, and the entrance to the theater lot created a "weave" area, a design that requires vehicles to cross into the paths of one another. For this type of area, a weaving analysis should have been performed and, using the guidelines contained in Chapter 6.05 of the Design Manual and the Highway Capacity Manual (Exhibit G), the distance between the exit from a highway on one side of the service and the next closest entrance to shopping areas on the other side should have been at least 700 feet and optimally 1,200 feet. According to his calculations based on the aerial photograph (Exhibit E), Bellizzi determined that there was a distance of only 195 feet from the end of the solid line separating the exit ramp from the service road to the entrance for the theater, a distance that he described as "grossly inadequate" for a car in traffic to move laterally across 34 feet of roadway (the two driving lanes and the parking lane [shoulder] of the service road). Because no weaving analysis was done and because inadequate attention was paid to the likely traffic flow generated by a proposed multiplex theater, it was his opinion that this portion of the highway project had been executed without adequate study and lacked a reasonable basis.

In order to achieve compliance with the guidelines, Bellizzi testified, the ramp would have had to have been moved significantly east or west of its location, or the movie theater and other stores at that location would have to be accessed from the previous exit. Alternative ways of addressing the problem, according to Bellizzi, would be to force traffic to continue past the movie theater entrance, by use of a raised island or a concrete double line, or to keep the right and left lanes of the service road separate by use of a curbed island. This feature had in fact been placed at a similar location on the other side of Sunrise Highway. A less costly alternative would have been to control traffic through signs directing theater patrons to exit the main road one exit earlier (to the west) so that there would be additional time for them to make the needed lane changes.

Evidence of a prior accident at this location was presented by Bellizzi (Exhibit 73). This accident, however, occurred beyond (to the east of) the entrance to the movie theater and thus could not have resulted from a too short length in which traffic could move from the Exit 52 exit ramp to the movie entrance. It does appear, however, that the vehicle that caused the accident had crossed two lanes of traffic in order to turn off the service road at another entrance. The dynamics of that incident were different, however, since the right rear of the car collided with the left front portion of the vehicle designated victim (Vehicle 1). The location of the damage suggests strongly that the second car, presumably the cause of the accident, had crossed from the right in front of the second vehicle and "clipped" it as it pulled ahead. In addition, with the consent of both parties and in the company of counsel, I viewed the site itself and personally observed the flow of traffic from the exit onto the service road. Other than observing that the depiction of roadways presented at trial was accurate, my primary observation was that the traffic appeared to be going much faster than the posted speed limits of 55 miles per hour on Sunrise Highway and 35 miles per hour on the service road.

Bruce Savik, a licensed professional engineer with experience in designing State roads, testified for the State and gave his opinion that the design of this highway exit/service road area was in compliance with Chapter 6 of the Design Manual, specifically the portion relating to restricting access adjacent to a ramp exiting from a main highway. He also measured the area at the bottom of the eastbound ramp at Exit 52 and determined that it was built in accordance with the State's design plans and contained the required 300 feet of no access.

Savik categorically rejected the characterization of this area as a "weave," which he described as two lanes of traffic traveling in the same direction and crossing paths, because cars using the movie theater entrance are not traveling in the same direction as cars proceeding along the service road. By way of illustration, he pointed out that a true weave pattern was created along the service road where those cars leaving the main highway and getting onto the service road (for example, at Exit 52) were crossing over the path of cars that were already on the service road and moving to the left to the entrance ramp onto the highway at the next exit. The two ends of that area were, appropriately, 1,289 feet apart. Weave analysis would not be proper, on the other hand, to establish the distance between an exit and a service road entrance, such as the entrance to the theater, and Savik had never known it to be applied in such situations. Savik also criticized the corrective measures suggested by Bellizzi as being impractical and, in addition, as dangerously interfering with the requirements of the weave area between Exit 52 and the next exit. With respect to the concrete channeling used on the opposite side of the highway, he stated that it was appropriate there because of the presence of two very large shopping centers on the north side and the fact that the road leading off that service road is not merely a parking lot entrance, but also serves as a connector road. Such channeling would not be needed or appropriate at the accident location site.


The State, and other governmental entities which operate public roads, owe a duty to the public to construct and keep their streets and highways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271; Carroll v State of New York, 157 AD2d 697). The State is not, however, an insurer of the safety of its roadways, and thus the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91) or allow for the inference of negligence (Koester v State of New York, 90 AD2d 357).

Liability will attach only where it is established that the municipality's planning decisions were made without due care or are inherently unreasonable (Weiss v Fote, 7 NY2d 579, rearg denied 8 NY2d 934; Schuls v State of New York, 92 AD2d 721). For the State to be liable for design errors, it must be established that the decisions were "plainly inadequate" and that there was no reasonable basis for the design choices (Affleck v Buckley, 96 NY2d 553; Friedman v State of New York, 67 NY2d 271, supra). Liability may also attach where, no matter how careful the design may have been, there is actual or constructive notice of a dangerous condition (Harris v Village of East Hills, 41 NY2d 446; Rinaldi v State of New York, 49 AD2d 361), and subsequent failure to either correct or warn motorists of known hazards can be a breach of this duty (Wingerter v State of New York, 79 AD2d 817, affd 58 NY2d 848).

In addition, in order to establish the State's liability for negligent design or maintenance of roadways, it must also be shown that such negligence was the proximate cause of the accident (Applebee v State of New York, 308 NY 502; Plantikow v City of New York, 189 AD2d 805; Hearn v State of New York, 157 AD2d 833, lv denied 75 NY2d 710). Stated another way, it must be established that the accident was a "natural and probable consequence of the State's negligence" (Schichler v State of New York, 110 AD2d 959, 961, affd 66 NY2d 954). "Furthermore, the inference of proximate cause must be the only one which can be reasonably drawn from the facts" (Lyle v State of New York, 44 AD2d 239, 244, affd sub nom. Murray v Rutkowski, 38 NY2d 782). Thus, where there are two equally likely causes of an event and only one of them arises from defendant's negligence, the trier of fact may not infer that such negligence was the cause (id., at 245). Speculation may not be substituted for proof, and if there are several possible causes for an accident, liability can be imposed only upon proof that the injuries resulted, in whole or in part, by the cause for which the defendant was responsible (Pontello v County of Onondaga, 94 AD2d 427).


The evidence presented at trial establishes that this portion of the Sunset Highway exit ramp was designed after adequate study and competent decision making. The design was made with relevant information about the existence and location of the movie theater and its future plans for expansion, and with attention to the average traffic flow at different periods during the day. Contrary to the assertion of Claimant's expert, design of the area between the end of the Exit 52 ramp and the theater entrance did not require the application of weave analysis, and the distances did not have to meet the safety requirements for a weaving section. All references to weaving, including its description in the Design Manual (Exhibit 75), indicate that weaving occurs when the flow of traffic crosses over in two different directions simultaneously. Thus, weaving occurred between Exit 52 and its adjacent exit, where traffic exiting would be moving to the right to get onto the service road while, at the same time, at least some of the service road traffic would be moving to the left to get to the next entrance ramp to the main road. For this portion of the roadway, the Deisgn Manual's distance requirements were met (Exhibit J, §6.05.01[A]). In contrast, the area between the end of the exit ramp and the theater entrance -- the area in which this accident occurred -- had intense lane changing in only one direction: to the right, from the exit ramp to the theater entrance, while traffic on the service road at that location would be continuing in a straight path. Both experts agree that the design properly included a minimum 300 feet of no access after the end of the exit ramp (Exhibit J, §6.04.09, Fig. 6-V).

In addition, the proximate cause of the accident cannot be determined with any degree of certainty. Because the right front "corner" of the Scheid vehicle collided with Claimant's motorcycle, it would not appear that the accident resulted from the same dynamics that produced the accident described in Exhibit 73, one that was apparently caused when the vehicle on the left cut in front of another vehicle too sharply, causing damage to the right rear of the forward car. In order for the impact to involve the right front of the vehicle moving from the left, logic suggests either that the car turned very sharply to the right into the path of the oncoming motorcycle or that the motorcycle crossed to the left into the path of the car, most likely after "racing around" it, perhaps on the shoulder/parking lane.

The first scenario would possibly implicate the design of the highway, suggesting that such an acute turn was required in order to get to the theater from Exit 52. But I believe that the second description is closer to the truth in this instance. For one thing, there is nothing to suggest that Claimant departed from his usual routine by exiting from Sunrise Highway before Exit 52, as he would have to do in order to be traveling straight in the right-hand lane of the service road when the Scheid car came alongside. More significantly, the angle and direction in which the motorcycle (and presumably Claimant) traveled after impact suggests strongly that the motorcycle moved in front of the automobile and that the latter vehicle was traveling more in a forward direction than turning to the right. The impact occurred west of the theater entrance -- this was the conclusion of Officer Lennon and is also demonstrated by the fact that the Scheid vehicle continued to move and was able to continue moving and still turn into that entranceway after impact. Claimant's motorcycle came to rest considerably east of the area of impact, across the theater entrance and beyond, into the parking area of Jim's Smoke Shop. In other words, the motorcycle was propelled essentially forward, alongside the service road, not to the side, which would have been the case if it was struck by the automobile as it turned into the theater entrance. While the precise dynamics of the accident cannot be known with certainty because there is little hard evidence and no accident reconstruction expert testified for either party, it appears as likely that it was caused by Claimant's improper attempt to maneuver around the Scheid vehicle as it was by any movement to the right of that vehicle.

Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury.

(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7, citing Digelormo v Weil, 260 NY 192; Feblot v New York Times Co., 32 NY2d 486).

Claimant has failed to make a prima facie case either that the State was negligent in its design of this portion of the Sunrise Highway and the adjacent service road, or that some feature of the highway design was a proximate cause of the accident. Consequently, the Chief Clerk is directed to enter judgment for Defendant, dismissing the claim.


June 28, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]Claimant is entitled to the benefit of the Noseworthy Doctrine (Noseworthy v City of New York, 298 NY 76), in light of medical opinion that his lack of memory was genuine and was causally related to the accident. The fact that there were no objective findings to support such a conclusion when Claimant was later examined by Defendant's medical expert (Berkowitz Reply Memorandum) says more about the nature of the problem and the limitation of medical measurement than it does about the genuineness of Claimant's failure to recollect. His earlier deposition testimony that he could recall leaving the highway at Exit 52 does not contradict his statement at trial that he has no recall of the accident itself.
The doctrine's benefit is of questionable value, however, since the parties are on roughly equal footing, as the other witness to the accident, Melissa Scheid, had as little knowledge of the event itself and only minimal knowledge of events leading up to it (see, Lynn v Lynn, 216 AD2d 194). In any event, the Noseworthy Doctrine "does not... shift the burden of proof or eliminate the need for plaintiffs to introduce evidence of a prima facie case" (id., at 195, quoting Schechter v Klanfer, 28 NY2d 228, 233).
  1. [2]Although the term "ramp" is used to describe the roadway leading off from a main highway to adjacent areas, I note that there was no appreciable elevation differential between the main Sunrise Highway and the service road in question here. Thus, this exit "ramp" is actually a short stretch of level roadway going from the main road to the service road.
  2. [3]The end of the raised concrete area, or "bullnose," was several feet before (i.e., west of) the end of a solid white line, at which point traffic from the exit ramp could legally cross over onto the service road.
  3. [4]Photographs of the Scheid vehicle (Exhibits 10, 11 and 12) show damage in the area of the front right headlight and on the side of the car immediately behind the headlight. There are no signs of damage above the right front tire or further back. Claimant's motorcycle is shown at rest on top of a red sedan parked immediately adjacent to the service road at Jim's Smoke Shop. That shop is on the eastern corner of the intersection between the service road and the road to the theater parking lot. Upon impact, the motorcycle apparently flew forward across the theater entrance road and a short grassy area before landing on the parked car.